I think Apple’s iBooks app is pretty decent, all things considered. As I ranted on at length about, I think there’s a lot of things to be modified, but it’s a good first effort. So I was reasonably excited to hear about Apple releasing their iBooks toolkit, iBooks Author. Like a lot of tech writers, I’m a frustrated novelist currently working on a novel, and as a huge eBook fan, I want it in eBook format. (I’m not about to pull a J.K. Rowling on my non-existent fans.) So I was absolutely stonkered by a post from ZDNet that dug into the iBooks Author End User License Agreement (EULA–that unbelievably long thing that pops up before you can complete installation of a program where you never read it and just click the box next to “Accept”). What they found left me (and your other Gear Diary stalwarts) the IM-equivalent of slack-jawed. ZDNet writes (I apologize for the length of the quote, but it’s worth it, believe me):

I’ve downloaded the software and had a chance to skim the EULA. Much of it is boilerplate, but I’ve read and re-read Section 2B, and it does indeed go far beyond any license agreement I’ve ever seen:

B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:

(i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;

(ii) if your Work is provided for a fee (including as part of any subscription-based product or service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.

And then the next paragraph is bold-faced, just so you don’t miss it:

Apple will not be responsible for any costs, expenses, damages, losses (including without limitation lost business opportunities or lost profits) or other liabilities you may incur as a result of your use of this Apple Software, including without limitation the fact that your Work may not be selected for distribution by Apple.

The nightmare scenario under this agreement? You create a great work of staggering literary genius that you think you can sell for 5 or 10 bucks per copy. You craft it carefully in iBooks Author. You submit it to Apple. They reject it.

Under this license agreement, you are out of luck. They won’t sell it, and you can’t legally sell it elsewhere.

This is not unlike IBM demanding a cut of every book you sell, should you happen to have used a Selectric to type it on. (ZDNet’s comparison with Powerpoint is also apt, I believe.) It’s been clear for a while that Apple has been trying to leverage their tremendous advantage in the handheld and tablet markets into a club to wield over the “middle-men” between content providers and consumers–publishers, record companies, and the like. This, however; this is Apple saying, “Use our program, and we get a cut of anything you sell that you developed with our software forever.” This is Apple going after the content providers themselves, just for the privilege of using their software to create their content. It’s obnoxious. It’s a naked power grab. And I find it doubly-obnoxious that they’re hiding it deep in an EULA for a piece of “free” software. (Pretty clear why they’re not charging for the software, isn’t it? Once you use it, they’ve got you for life!)

Now, I’ve never been an Apple fanboy. I like Apple products, I think they make great design decisions, but they’re still a giant, multinational company. And giant, multinational companies don’t have a conscience or a heart; they just want a profit. This is Apple going after that profit, but I think they’ve jumped the shark on what people will accept. What do you think? Tell us below.

Doug is a nerd from way back, falling for a Commodore PET at the age of 15, and never looking back. Riding the nerd wave, he got a Computer Science degree and entered the tech industry at a young age, deciding after a year and a half of front-line phone technical support that he should try something, *anything* else. He settled on technical writing, and has been cranking out documentation for companies like Unisys, SGI, Cisco, Juniper, and many others ever since. He is nothing short of ecstatic to be working for H-P from his home base in Austin.

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Comments

Maybe I am a little out of practice with my legalese, but from what I am reading in your quoted text, there is no explicit stipulation that if your work is not selected for distribution by Apple that you are expressly forbidden from submitting it to other companies. I think that an inference is being drawn (granted, it may be entirely valid) from the juxtaposition of the “only be distributed by Apple” clause and the paragraph that follows regarding Apple’s lack of responsibility regarding losses incurred including those related to not being chosen for distribution.

The “separate written agreement with Apple” that is mentioned may include language that negates exclusivity if a work is not selected to be distributed by Apple. But who really knows yet?

I can certainly say that I would not enter into such an agreement unless I, as an author, had the right to distribute my book through another source if it were not chosen by Apple.

That is also my thought, but as I read all of the coverage it was vague enough to raise flags. It seems like a clause should exist that stipulates that full ownership reverts to the creator in the case of non-publication by Apple. Because without it, all of the verbage around Apple’s rights weigh awfully heavy …

There is nothing in this software agreement that prevents you from publishing the same content using a different software tool in another ebook market. So, speaking as things exist today, you can take the same content, publish it with different tools to create a Kindle or Nook version of the book, and sell the book in their respective stores.

The word “work” is defined earlier in the EULA as the *OUTPUT* of the iBooks Author application, not the *INPUT*. It is basically saying that if you use our software app to publish a book for pay, the book that is created BY THE SOFTWARE must be offered for sale only in our bookstore. Given the multimedia features of the potential output of this software tool, it’s not surprising that Apple reserves the right to prevent the sale of something like explicit pornography (or how-to video guides for the creation of explosives from household chemical products) from their store.

I feel your pain. I am not a lawyer but forcing a potential e-book contributor or even app contributor to have to get legal opinion and be faced with a potential tort from such a large and litigious company has to be really frustrating. Actually such policy is anti-innovative–exactly the opposite of what made Apple great. And, due to my experiences with Apple made–in the past tense–is correct. They are just no longer the innovator they once were.

Frankly, tho I’ve been an Apple cheerleader for 25 years, I’d have to say Apple has “jumped the shark” in a number of its product lines and, most notably, in poor customer service.

For decades, I was willing to pay three times as much for an Apple because of their design, operating system and customer service superiority. Since they went with the Intel chip they are no longer king of the hill in techno. And, sans superior customer service Apple is now a one legged stool. Recently, I went direclty to Mr. Cook to give him an opportunity to fix, what I believed to be, a major flaw. He sent me right back to the same customer service reps. that took no corrrective action in my first 5 or 6 attempts. In fact, all the reps I dealt with, about a half dozen, all defaulted to “policy statements”. Which forced my hand as a consumer to stick to my fundemental policy: I don’t do business with companies who hide behind policy statements.

They weren’t the first nor won’t be the last company to let their stock equity go to their heads. It’s predictable in product life cycle terms that they would hit the Stage III inflection point at some time. I’m disappointed it was so soon on the heels of Mr. Jobs passing. Sadly, I await their fall. Good bye Apple, it was a nice run!

The above comment was made in a public forum as an issue of public interest and is offered as a matter of public significance and well being.